Order List of 6-13-2008

In this week’s order list, the Court decided four new cases, granted rehearing and changed some language in an earlier opinion from February, selected two more cases to be argued this fall, and dismissed a previously granted petition pursuant to settlement.

The Court granted rehearing and revised its majority opinion in Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03‑0647. I started to write about a procedural wrinkle in that case here, but it’s complicated enough to warrant a separate post.

Four New Decisions

General Electric Co. v. Moritz, No. 04‑0871.

The most divided case of the day was this premises-liability case brought against a landowner by the employees of an independent contractor hired to do work on the property. By a 5-3 vote (Justice O’Neill did not sit), the Court held that the landowner had no duty to warn that employee of the danger from not having handrails on a ramp. The Court reversed and rendered judgment.

In a unanimous opinion authored by Justice Willett, the Court recognized that the doctrine of equitable subrogation could be applied to let subcontractors step into the shoes of their contractor to bring a product-liability claim:

Over a century ago, we declared that “the courts of no state have gone further” than Texas “in applying the doctrine of subrogation” because “our decisions recognize the doctrine . . . to its fullest extent.” Today’s case requires us to decide whether this doctrine applies to a subcontractor seeking to recoup contractual payments from alleged third-party tortfeasors.

The Court held that it did, reversed the court of appeals’ judgment, and remanded the case to that court.

Leland v. Brandal, No. 06‑1028.

The Court has recently issued a number of opinions about how to challenge expert reports in medical-malpractice cases. Today, the Court addressed what happens back in the trial court after an expert report is found to be inadequate on appeal.

The Texas Supreme Court held, by an 8-1 vote, that “when elements of a timely filed expert report are found deficient, either by the trial court or on appeal, one thirty-day extension to cure the report may be granted.” See Tex. Civ. Prac. & Rem. Code §74.351.

The point of contention was what happens when this defect is determined for the first time on appeal — when the trial court held the report to be adequate (and thus did not grant an extension of time) but the court of appeals disagreed. Justice O’Neill wrote for the Court, joined by seven other Justices, that the party would have a chance to seek a thirty-day extension.

Justice Brister dissented and would have held that litigants should not be given a chance to cure when their expert reports are found deficient for the first time on appeal.

Kao Holdings, L.P. v. Young, No. 07‑0197

This is a case about what it means to sue a partnership. In this case, Young sued Kao Holdings, L.P. and served those papers on William Kao, its general partner. The suit did not separately name Kao as a defendant. Neither Kao Holdings nor Kao answered the suit, and Young obtained a default judgment against both.

The court of appeals held that a default judgment against Kao himself was possible because of his status as a partner.

The Texas Supreme Court modified that aspect of the court of appeals judgment, holding that judgment against Kao individually was not proper because he was not personally named as a defendant. The Court left intact the court of appeals’s disposition of the other issues, which remanded the case to the trial court for re-computation of damages.

Justice Hecht delivered the opinion of the Court. The case was decided under Rule 59.1 without oral argument, marking the third time in the past few weeks that the Court has used that rule to issue something other than a per curiam opinion.

Two Cases Set for Argument

These will add to the Court’s argument calendar this fall, with argument dates to be announced later.

In re James Allen Hall, No. 07‑0322, a petition for writ of mandamus out of Bexar County and the San Antonio Court

One Case Removed from the Oral Argument Docket

Just like last week, it’s two steps forward, one step back in accumulating oral arguments for the fall calendar. The Court chose the two cases listed above for argument, but (like last week) another previously granted case was dismissed pursuant to settlement.

That case is City of Lubbock v. Nunez, No. 07-0655, in which the petition for review had been granted on April 18, 2008. (Docket sheet)